McOutcheon Church v. Smith
McOutcheon Church v. Smith
Opinion of the Court
Appellants sued appellee to cancel the vendor’s contract lien, retained in a conveyance by appellee to Mary Todd, securing the payment of a series of promissory notes executed in part payment of 737½ acres of land in Rains county, of which appellants at the time were the owners in fee simple, on the ground that the notes were barred by the statutory period of limitation, as was also his right to recover the superior title to the land, Ibut all of which constituted a cloud upon appellants’ title. All issues presented in appellee’s brief were amply pleaded below, because of which it will not be necessary to detail same here.
There was trial without jury, whereat judgment was rendered for appellee ascertaining the amount of appellee’s debt, but rendering no personal judgment therefor against Mrs. Todd, establishing his lien on the land against all parties, and directing the issuance of proper process for its sale in satisfaction of the debt. 'From such judgment this appeal is taken.
The facts found by the court and those apparent of record necessary to be stated in considering the issues presented are these: On December 27, 1905, appellee Ben O. Smith, in consideration of $3,687.50, conveyed to Mrs. Mary Todd 737½, acres of land in Rains county. Of the consideration $487.50 was cash, the balance being represented by five promissory notes, all dated December 27, 1905, one for $500, due one year from date, and four each for $675, due respectively in two, three, four, and five years from date. The conveyance and each note retained the vendor’s lien upon the land to secure payment of the unpaid purchase price. Each of said notes provided that in the event same were placed with attorneys or sued upon 10 per cent, of the amount of the principal and interest should be added as attorney’s fees. On July 16, 1915, Mrs. Mary Todd conveyed to appellants McCutcheon & Ohureh an undivided one-seventh interest and to Wm. F. Todd an undivided six-sevenths interest in said land. On August 5, 1915, appellants MeOutcheon & Ohureh and Wm. F. Todd sued appellee for the relief stated. Appellee on October 15, 1915, answered, and by cross-action interpleaded his vendee, Mrs. Mary Todd, praying as against all parties for the recovery of the land and cancellation of the deed to Mary Todd, and in the alternative for judgment against Mary Todd on his notes, with foreclosure of his lien for the full amount thereof against Mary Todd and Mc-Outcheon & Ohureh.
The issues in this case depend upon the construction to be placed upon certain amendments to the statutes of limitations enacted *833 by the Legislature in the year 1913, and the application thereof to the facts controlling the transactions between the parties in this suit. In such connection it was contended by appellants at trial and is vigorously maintained in this court that under said amendment and at a time prior to that when ap-pellee filed his answer and cross-bill in the court below seeking affirmative relief his right to recover the land on the ground that he retained the superior title thereto in his deed to Mrs. Todd, as well as his right to foreclose the lien retained to secure payment of the notes, was barred by the respective statutes of limitation governing both remedies, by reason of which appellants’ right to defeat appellee’s claim became a vested one. In view of such contention and the further contention that the effect of the amendments was retroactive, and hence unconstitutional, it will be of assistance to state the limitations of the legislative authority in changing, modifying, substituting, and destroying the remedy by which rights may be enforced.
We will now consider appellants’ and ap-pellee’s rights and remedies under the old statute or before the first amendment, which became effective July 12, 1913. As we have shown, appellee’s cross-action seeking alternately the recovery of the land and a foreclosure of his lien was filed October 30, 1915. At that time under the old law all right to foreclose the vendor’s lien was completely barred by the statute of limitations of four years. Every note of the series was more than four years overdue. The last note of the series matured December 27, 1910. However, he did have the right to recover the land by virtue of the superior title which he retained in his deed. This is true because none of the notes were more than ten years overdue when he filed his cross-action. The first matured December 27, 1906. He thus had until December 27, 1916, in which to file his suit to recover the land as to all notes. With his remedy so standing, the law, as we have shown, was amended, effective July 12, 1913, which was also before his remaining remedy was lost. By the amendment the right to recover the land by virtue of the superior title was reduced from ten to four years after maturity of ⅛¾ debt. By that amendment the right of appellee on October 30, 1915, to recover the land as to the first three notes was destroyed, but preserved as to the last two, since the first three at that time were more than four years overdue. However, at the same time, July 12, 1913, the law was further amended, as we have shown, by providing that all notes executed subsequent to July 14, 1905, and not barred by the four-year statute of limitations, could be enforced at any time within four years from the time the act was effective, or July 12, 1913, which would include the last two notes, and that all those who had retained the superior title to the land in their conveyance should have twelve months thereafter to bring suit for that purpose, which included all appel-lee’s notes. Such is true because at the time the amendment was effective he had at least until December 27, 1916, to recover the land as to all notes; the net result being that appellee’s time in which to recover the land under the old law was shortened, but he was in part restored to the remedy he had formerly lost. Thus he still had a remedy at that time which he could have exercised; that is, he could have foreclosed his lien securing payment of the last two notes and he had until July 12, 1914, in.which to recover the land as to all notes. Before the -expiration of the time in which he could have exercised the remedies remaining to him a special session of the Legislature which enacted the first amendments we have just reviewed, by. an amendment effective November 19, 1913, enlarged appellee’s remedy by declaring that all notes executed subsequent to July 14, 1905, if not barred by the four-year statute of limitations might thereafter be enforced within four years, provided that, if any such obligations were on June 30, 1913, in fact barred by said four-year statute of limitations, they nevertheless could be enforced within four years after the amendment was effective, or November 19, 1913, providing also that suits to recover the land should be enforced in one year, or by November 19, 1914. Thus, then, while ap-pellee still had a remedy remaining, the Legislature, as we have shown, enlarged same by allowing him four years from the passage of the law or November 19, 1913, in which to sue upon all notes not barred, which included the last two, and four shears from the same date in which to sue upon those barred by limitation on June 30, 1913, which included the first three, or, in the alternative, to sue to recover the superior title in one year from said date. His suit, as we have said, was filed October 30, 1915, seeking both remedies. He was not entitled to recover the land, because his right to that remedy was lost November 19, 1914. He was, however, entitled to foreclose the lien on the entire series of notes, since eagh. one of them under .the provisions of the last-amended act could be declared on for that purpose at any time within four years after June 30, 1913. At no time from the date of the execution of the notes was all remedy lost to appellee by which he could have enforced his contract, either to foreclose his contract lien or to recover the land by virtue of the superior title retained in his deed to Mrs. Todd. That being true, it follows as a corollary that her transferees, appellants, never at any time acquired a vested right by which, because of a given state of facts, they could have resisted the enforcement of appellee’s rights growing out of the purchase and sale of the land.
“A right cannot be considered a vested right, unless it is something more than such a_ mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of exemption of a demand made by another.” Cooley, Const. Lim. (6th Ed.) 438.
It is also said that:
“The weight of authority in the several states, it is believed, supports the view that the bar gained by the running of the statute is a vested right which cannot subsequently be taken away *835 by the Legislature either by creating a new right, repealing the former statute, or withdrawing a specified past period from its operation.” 8 Oyc. 922.
But “there can be no right'gained in the running of the statute till the prescribed period of limitations is completed, or according to some authorities till not only the remedy is barred, but the limitation has entirely extinguished the former right and vested title. But where only one particular form of remedy is barred, while other equivalent forms remain, there can be no objection to a removal of a bar on the first.” 8 Cyc. 923. ’
To the same effect see Power v. Telford, 60 Miss. 195; Kipp v. Johnson, 31 Minn. 360, 17 N. W. 957; Whitney v. Wegler, 54 Minn. 235, 55 N. W. 927.
There are several other propositions urged by appellants and as many counter propositions urged by appellee, which we conclude are not necessary to be considered under the conclusion we have reached that at no time during the period of the two amendments had appellee lost all remedy by which to enforce his contract, and that the specific remedy of suit to foreclose within four years after June 30, 1913, was substituted finally for all other remedies was the only one he had left.
For the reasons stated, the judgment is affirmed.
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Reference
- Full Case Name
- McCUTCHEON & CHURCH Et Al. v. SMITH
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